Tuesday, June 30, 2009

One question that someone always asks me is, "Why should I register my trademarks or copyrights?"

Many people do not like the expense of registration. I ask if it's too expensive to not register.

There are a few reasons for registering.

1. Public notice. In both a trademark and a copyright registration certificate, the owner of the intellectual property is listed. Trademark certificates are filed with the United States Patent and Trademark Office. Copyright certificates are filed with the Library of Congress.

2. Public descriptions. In a trademark certificate, the goods and services are listed. In a copyright certificate, a brief description of the work is filed, along with two copies of the work itself. The owner of the intellectual property is also listed.

3. Geography. All registrations are good in all fifty states and all territories of the United States.

4. Barriers to lawsuits. If a trademark is not registered, it is considered a common law trademark. The goods/services and geography of the mark must be argued in court if there is infringement. No infringement lawsuit can be filed on a copyright that is not registered. Should there be infringement before registration of a copyright, the copyright owner loses damages (statutory damages up to $150,000 and attorney's fees) and is only allowed to collect actual damages for the copyright infringement.

5. The power of federal law to help with damages in any intellectual property lawsuit comes only with registration.

6. Ease of cataloging. This is a thought that not many people have. If a mark or work is registered, then there is a number. Should the mark or work be sold or licensed, then it is easy to state in a contract what the number is and what the property is.

One example is a store that creates its own jewelery and sells it. The jeweler needs to register the copyrights in all the jewelery, as it probably will qualify for a trademark. Using the reasons above, the importance of registering any intellectual property (such as each piece of jewelery) becomes clear.

It is usually up to an inventor to handle the business aspects of her patent rights. That is, patent lawyers deal with getting a patent for their clients; clients are supposed to make money from their patents. Once the patent is obtained, the patent attorney typically leaves the picture in relation to those specific patent rights.

Relatively few patents end up being valuable for a patent owner, however. This typically occurs because the business needs of the client changed during the time the patent application was pending. Historically, such non-aligned patent rights were ignored or allowed to lapse because no marketplace existed to allow the patent owner to sell her unwanted patent rights. The unwanted patent, as well as the legal costs to obtain it, were considered unrecoverable sunk costs to the patentee.

This is beginning to change with the recent introduction of technology marketplaces that post technology needs sought by corporate innovation groups. The most notable of these are Innocentive.com and Yet2.com. Interestingly, I have seen a number of technologies on each of these websites that are possibly relevant to patents that I have obtained for clients over the last several years. While this could be a coincidence, I also think it could be a signal that more companies are dipping their toes into the Open Innovation space, as opposed to relying solely on internally developed products or technologies.

As more companies advertise their technology needs, there will undoubtedly be more opportunities for patentees to dispose of their unwanted patent rights. Few patent holders will have the "bandwidth" or perspective necessary to review these technology marketplaces. Thus, unless someone else makes the connection for them, opportunities to sell unwanted patents will likely have the ability to capitalize on these opportunities. I think that patent attorneys can fill a need in this regard.

Patent attorneys seeking to improve the value they provide to clients would be well-served by regularly reviewing the listings on these databases and spreading the word to their firm colleagues about the types of technology being sought by these technology marketplaces. Imagine the delight that clients would experience when their patent attorney brought them opportunity to make money on a technology that they no longer need, but have nonetheless spent considerable resources on over the years. I can here the client's response now: "You mean my lawyer is actually making me money instead of costing me money?!"

A word of advice, however. If the technology solution was readily apparent, the company publicizing its need to the world would likely not have gone to the effort and expense to list it on the technology marketplaces such as Innocentive.com or Yet2.com. Indeed, to likely be an acceptable solution, the idea will probably not just be "out of the box" but "out of the truck the box came in." An example of such a solution is found in the Magic Eraser(R) story.

The Magic Eraser story is detailed in the Harvard Business Review article cited and linked to below. In relevant part, Magic Erasers comprise a BASF insulating melamine foam that was sold in Japan as a household sponge. A "technology scout" saw the product in Japan and brought it to P & G for testing.

P & G introduced the BASF foam directly into the US as a cleaning product, in addition to entering into an ongoing collaborative R & D venture with BASF to improve the cleaning properties of the melamine foam. The Magic Eraser brand has become a powerhouse for P &G and has extended to products beyond the BASF foam. BASF has also benefited substantially from this endeavor in increased sales of its melamine foam, as well as in developing a strong collaborative supplier relationship with P & G.

The point of relating this story is that although BASF sold its insulating foam product into Japan for cleaning purposes, its business teams did not recognize that these same properties would be game-changing in the US market. Similarly, although P & G has one of the best cleaning R &D operations in the world, its scientific and business teams were unable to identify the BASF foam as a potential fit for its product offerings. It took someone who was charged with scouting technology--that is, working outside of the usual internal corporate R & D silos--to make the connection between the BASF foam and the huge US cleaning market.

Patent attorneys can serve as a type of technology scout for their clients. In preparing and drafting patent applications and in conducting opinion work for their clients, patent attorneys develop a comprehensive understanding of the properties and functionalities of their clients' products and technologies. A patent attorney who reads the technology wish-lists posted on technology marketplaces Innocentive.com and Yet2.com may be better able to make the connection between the desired properties of a technology and his clients' patented technology that could solve that technology needs.

As illustrated by the Magic Eraser story, a client who works in the polymeric insulation space may not be "wired" to recognize opportunities in the household cleaning space, nor will a cleaning expert likely be familiar with the auxiliary properties of an insulating foam. A patent attorney can serve as the bridge to connect such disparate disciplines because they talk to clients across varied technology and business silos everyday.

Of course, most clients will not wish to pay their attorney's hourly rate to serve as a technology scout. Such a service certainly would operate as a value-add for most clients. Nonetheless, as clients demand more from their patent attorneys and patent practice becomes increasingly commoditized, I believe that those attorneys who show their clients that they seek to create actual value for their clients will generate more client loyalty and will face fewer push-back on cost.

"IP doesn't matter unless it makes your business money." Jackie Hutter is Principal of The Hutter Group (http://www.JackieHutter.com), a leading provider of strategic IP ("Intellectual Property") business counseling to organizations and entrepreneurs that wish create and maximize asset value by capitalizing on the power of IP in today's market. Jackie has also founded Patent MatchMaker (http://www.PatentMatchMaker.com) to assist companies and entrepreneurs to identify opportunities to sell their patents. She has over 15 years experience counseling innovation-driven companies, universities and business development and investment professionals in maximizing their firm intellectual asset value. In 2009, Jackie was named one of the world's leading IP Strategists by IAM Magazine. Jackie was named a SuperLawyer(R) in Intellectual Property in Georgia in 2004, and she has been a frequent speaker on IP issues to her fellow lawyers. Jackie was formerly Senior Patent Counsel at a Georgia-Pacific LLC, where she had sole responsible for Dixie(R) patent matters and, later, the company's Chemicals business. Prior to joining Georgia-Pacific, Jackie was a shareholder at the prestigious IP firm of Needle & Rosenberg, PC (now Ballard & Spahr), where she represented multi-national companies, universities and innovators in protecting their IP to create maximum asset value. Jackie has also been a patent and IP litigator, which gives her a unique perspective in how to maximize firm IP value by avoiding litigation. Prior to attending law school on a full academic scholarship and where she graduated with honors, Jackie obtained her M.S. in Pharmaceutical Sciences and she spent several years as practicing chemist at Helene Curtis (now Unilever). She is a named inventor on one U.S. patent. Jackie lives in Decatur, Georgia, in a groovy mid-Century modern house with her husband, 2 daughters and several pets.

Monday, June 29, 2009

The United States is a beautiful country and is among the favorite tourist destinations of many tourists around the world. In addition, the United States is one of the most successful countries in terms of economical growth which have attracted people from other nations to reside or work in this country for better living conditions, and to receive a higher salary.

Millions of people from other countries visit the United States every year for different reasons. They travel to the country as tourists to visit their friends and relatives. Some travel for other reasons such as attending a seminar, conferences, training, medical needs, exchange programs, temporary worker, business meetings or decided to reside in the US.

As a matter of government policy, any foreigner entering into other countries must first secure a visa.. So it is important that you have knowledge on what kind of visa you need to apply for, which depends on the purpose of your trip.

Every year many people from different countries apply for US visas such as visitor visa, work visa and immigration visa. Application for visa includes securing an application form and attending a series of interviews. The US Embassy in the respective countries of the visitor will do necessary counter checking of all data provided through an interagency database. All submitted documents will be verified by the concerned agencies.

Just recently, the United States government has updated the policies in visa applications in order to provide better security for visitors and the American citizens. The evaluation and screening process are stricter in this time of economic recession. Visa application procedures have improved a lot with the implementation of an automated system for faster processing.

US visas are categorized into two; the immigrant visa and the non-immigrant visa.

The immigrant visa is sought by foreigners who have long term plans of permanently residing or working in the United States. However, the applicant should be sponsored by an employer or a relative who is a US citizen before being eligible for an immigrant visa.

This also requires that the petitioner should fill up the Affidavit of Support form which will indicate his financial capability to support the immigrant during his stay in the country. Normally, the process of applying for an immigrant visa can take up as long as two to three years to complete.

With respect to this application, the US government implements an immigration visa lottery in which lucky winners can have the opportunity to be given special privileges in shortening the application process to about two or three months only.

The non-immigrant visas can be applied for a foreigner who intends to stay in the United States for a short period of time. This is a visa that allows a person to stay in the country on a temporary basis.

Non-immigrant visas are commonly applied by tourists, performers, government officials, journalists, trainees, students and temporary workers. It can also be used for other purposes such as for medical treatment and business meetings. For temporary worker visa it is necessary that the petition be first approved by the US immigration including the Naturalization Service before proceeding with the application.

When you have plans in visiting the United States for whatever purpose, it is important to process ahead of time and to comply with all the necessary requirements. This will significantly avoid any delays on your travel. It is important to gather more details to the nearest US Embassy in your country to know the policies concerning your travel.

The government has recently released a new Naturalization Test, which is to provide a more standardized, fair and naturalization process. The U.S. Citizenship and Immigration Services (USCIS) took some years to revise the test to reflect the fundamental concepts of American democracy and the rights and responsibilities of citizenship. The redesigned test will help to encourage citizenship applicants to learn and identify with the basic values we all share as Americans.

The primary aim to redesigning the test was to ensure that all naturalization applicants receive a uniform, consistent testing experience across the nation. The new, redesigned civics test can effectively assess whether applicants have a meaningful understanding of U.S. government and history. The new test now serves as an important instrument to coincide with basic U.S. history and civics curriculum. The parallel flow of curriculum with the new test will provide a sense of continuity to encourage civic learning and patriotism among prospective citizens. The new test also has a revised English reading and writing section as well as a list of 100 new history and government questions.

If you are a citizenship applicant or a naturalization applicant under Form N-400, check with your U.S. Citizenship and Immigration Services office for additional information. At this point, if you have an immigration attorney it is wise to check in for detailed information.

It is important to know the details and how the new tests affect your present curriculum. Learn how this affects you as an applicant by conferring with an immigration lawyer.

Berd & Klauss (http://www.berdklauss.com) is a full service immigration law firm. We offer the best immigration attorney New York services available. Please contact us for a professional immigration lawyer New York. Billings Farnsworth is a freelance writer.

Sunday, June 28, 2009

Obtaining dual nationality and a second passport is one of the wisest moves you can make if you truly value maintaining your international freedom. It is sort of like taking out an insurance policy. Only the asset you are insuring is not your car or home, but something much more precious: YOUR FREEDOM. This is something you can't put a price on, but it is something many men have laid down their lives for. It is worth millions.

It may come as a surprise to you to find out that passports are a modern invention. Less than one hundred years ago official passports were never required by most countries. But now they are required by all countries and the issuing of them is used as a means of coercion by some to restrict your right to travel and even control, monitor, and record it. That is why applying for dual nationality and a second passport is a wise decision. If the government of your country is unduly authoritarian and is making your life miserable then you have a freedom document that will allow you to escape and freely move about the world.

Moreover, the issuing of your passport can be used by your government as leverage to force you to pay for the unreasonable tax burden created by out of control government spending. They can also force you to report worldwide income and assets if you are their property by reason of the passport you hold. So you can see why it may be prudent to obtain dual nationality and also a second passport to freedom - one with no restrictive strings attached. This will give you the option to renounce your old citizenship to embrace only your new one if things get too out of control in the country of your first nationality.

Having a dual nationality and a second passport means that you are legally a citizen of two countries at the same time. A person can acquire this by birth or by marriage. For example a family who is living abroad gives birth to a child in another country. That child could be both a citizen of the country he was born in and also a citizen of the original country of his or her parents. Also if a person goes to another country and marries a foreign citizen then they can become a citizen of their new country while retaining their original citizenship also.

But the other way to obtain dual nationality and a second passport is to involve yourself or all of your family in one of the legitimate second citizenship programs available from a very reputable provider who is either a lawyer or a facilitator who is knowledgeable about the laws concerning how to apply for dual citizenship in the particular country you are interested in getting second citizenship from. There are a few programs available that are affordable and there are some others that are more expensive. So it is important that you get connected with someone who can help you find a program that is best for your situation.

James Bauman Ph.D. has been involved with the offshore world, banking, and asset protection for about 12 years now. During that time he has gained an education in not only the financial asset protection world, but also has gained expertise in where to find the most affordable real dual citizenship and second passport programs available. Out of the knowledge he has gained over the years, he developed the asset protection business: FREEDOM OFFSHORE SERVICES. You can find out more about how to get a second passport by going here: http://www.freedomoffshore.com/howtogetasecondpassport.html Also, you can learn more about how to obtain dual citizenship by going here: http://www.freedomoffshore.com/dualcitizenship.html We hope to serve you not only in a way that saves you money, but by giving you quality service also. May your experience in the offshore world of dual nationality and second passports be a pleasant one with our help.

Applying for dual citizenship is an essential step to freedom for the person or family that values international freedom more than the illusion of temporary comfort. It is for the person or family that refuses to be trapped in a country that has lost the founding freedom and greatness it once had and assures you freedom of mobility in case an event of catastrophic proportions causes a violent change in the present system. You need to be able to flee if this happens with your alternative passport.

Applying for and obtaining dual citizenship gives a person or family freedom insurance in a time of social and financial upheavel brought on by terrorism and the stupidity of a spendaholic government whose currency is being trashed on the world markets. Do you realize that you do not own your passport? It is the property of your government and if they decide to keep their citizens trapped inside by means of martial law then you need to have second citizenship and an alternative passport to escape and insure your international freedom.

Applying for dual citizenship is also the gateway to obtaining a second foreign passport. This document proves your second nationality and is the ticket to freedom that you need in order to leave a country which is restricting the freedom of its own citizens. Without a second alternative passport you have no way to easily prove your dual nationality to the customs officials and border guards that you may meet during your hasty departure out of a crumbling world.

Moreover, if you have a portable business such as an internet business then applying for and obtaining dual citizenship gives you peace of mind knowing that you will be able to maintain your personal sovereignty through the freedom of international living. Through the use of your alternative second passport you will be able to work your internet business on the beaches of the world and not worry about your home country cancelling your first national passport and forcing you back home.

Futhermore, if you have assets in your home country that you want to protect then applying for and having dual citizenship will allow you to unrestrictedly open up bank and investment accounts in safe countries of the world where you can hold your gold, stocks, and money safely away from those who will want to take it from you while the financial system crashes. You need to keep your money in safe currencies like the Swiss Franc and in other currencies which maintain the purchasing power of your money. The ATM card you get will allow you to draw out the money wherever you are in the world.

James Bauman Ph.D. has been involved with the offshore world, banking, and asset protection for about 12 years now. During that time he has gained an education in the offshore world and has found the best lawyers and facilitators for dual citizenship leading to alternative passports. He has founded the business Freedom Offshore Services. We can introduce you to about six different dual citizenship sources that will NOT COST YOU your life savings. We have several competitors who charge up to ten times what you pay through us and our facilitators or lawyers. We do not sell dual citizenships or alternative passports but provide an introduction to the best and lowest priced ones available. That way you can apply for dual citizenship http://www.freedomoffshore.com/howtoobtaindualcitizenship.html and get an alternative passport with the lawyer or facilitator that handles the country that is right for you. We hope to serve you not only in a way that helps you with a cheap second passport, http://www.freedomoffshore.com/cheapsecondpassport.html but by giving you quality service also. May your experience in the world of offshore banking, asset protection, and dual citizenships always be a pleasant one with our help.

Saturday, June 27, 2009

Just last year alone, over 10 million Americans had their identities stolen according to the Identity Theft Resource Center (ITRC), a non-profit organization.

In other words, if you live in the US, you have about a 1 in 10 chance EVERY year of getting your identity stolen. What does it take to fix an identity theft problem? It will cost you an average of $550.39 in out-of-pocket expenses, it will take you an average of 116 hours and up to 12 months to repair the damage.

Preventing identity theft from happening is much easier than fixing an identity theft problem after it happens. There are some simple things you can do to protect yourself and your family.

Start by investing in a reliable cross cut personal paper shredder for your home. Be sure that it is "Cross Cut" and preferably one that has jam-free rollers or auto reverse and a safety guard if you have children in your home. Shred every paper document that has your personal information on it (except the documents that you want to keep of course), including all of the credit card applications you get in the mail. 68% of identity theft happens as a result of documents being stolen from recycle and trash bins. To

If you have a child away at college, get them a personal paper shredder as well. Currently a growing number of college students getting their identities stolen. Students tend to rarely shred documents containing their personal information and typically they receive a substantial amount of credit card applications and loan applications in the mail. The damage is often greater because it takes them longer realize that their identity has been stolen.

If you are clearing your files and have a substantial amount of papers that need to be shredded, take them to a drop-off site in your area. At most paper shredding drop-off sites they will shred your papers as you watch. They use commercial grade shredders that accept staples, credit cards, paper clips and sometimes even full binders. On average you can have a full bankers box of papers shredded for between $5-$15. There are several companies across the US that offer this service. Your bank may offer the service free of charge once or twice a year.

If you don't want to have to bring all of your papers somewhere, you could have a 50-100 gallon locked bin delivered to your home. Spend a weekend cleaning out your file cabinets and fill it with all of your documents to be shredded. The company will pick it up and give you a certificate of destruction. This service varies by company and usually costs between $60-$100. Be sure you use a company that is certified.

What can you do with the shredded paper in your home? One idea is to bring it to your local Humane Society! They use it to make cozy animal beds. Or you could use it to pack and ship items, compost it or put it out with your recycling.

Keep your personal information safe and you will be significantly less likely to become a victim of identity theft.

Heidi DeCoux is the publisher of the Life Made Simple E-zine and is a speaker, author and professional organizer in Minneapolis specializing in home organization. Heidi energizes her readers' lives by simplifying their homes and schedules. For more information and to receive her FREE e-Solutions Kit, Finally Revealed: The Fast & Easy Way to Get Organized and Stay Organized Forever, visit http://www.ClearSimpleLiving.com and discover how to find what you want fast, end the frustration of endless searching, and have more fun! For more information about Heidi and her services and products, visit http://www.HeidiDeCoux.com

Let us face it - The problem of identity theft is a rising concern for almost every computer user. This problem is on the rise as a threat to your security. I think it is better to prevent identity theft with a heavy hand than to suffer far-reaching consequences by falling victim to it.

How identity theft is attempted

It is of immense importance for you to know that steeling your identity is attempted through certain emails. These emails are referred to as phishing. A phishing email is likely to come from your brokerage firm, bank, Credit Card Company or online auction company. The email carries a message for you to update your valuable information in order to avoid a disturbance in their services.

The phishing email contains a link to the fake website that is a replica of the original website of your bank or Credit Card Company. Any information that you load on to the fake website makes its way to the website of identity theft artists. Then they use the information as a tool to threaten your identity.

How to prevent Identity Theft

Fortunately, there are several measures of identity theft prevention for you to ensure the security of your identity and valuable personal data. Using a quality shredder to shred the documents containing credit or bankcard account numbers, social security number and other valuable information is one of the simplest measures against it.

There are numerous inexpensive and convenient measures to choose from, when it is a serious matter of protecting your personal data on the Internet. Installing a quality spyware and virus scanning program, such as Anti-Virus PLUS, on your computer can arm you against identity theft. You need to keep them updated. The offer of virus and spyware protection along with high-speed internet access from internet service providers is a better option for your protecting your identity if you are a novice with computers.

What you should keep in mind

You need to have both common sense and knowledge for identity theft prevention and protection. Avoid clicking on a link of a phishing email that asks you for personal information. You should rather type the URL in the web browser when you want to visit the website. Always keep in mind that a request from a brokerage firm, bank or any such other financial institution asking for your social security number or password is highly unusual.

If you are in the doubt of the authenticity of an email that you have received in the name of a financial firm, always contact the firm.

Looking for tips, tricks and software about how to speed up, clean, repair, optimize and protect your computer? At http://www.Tune-Your-PC.com you will find tweaks and solutions for your computer issues, such as error messages, slow PC performance, security (spyware, viruses, privacy), and data & photo recovery.

Thursday, June 25, 2009

Sexual harassment is yet another reason companies must immediately conduct supervisor training for staff. It is the 900lb gorilla in the room most companies would rather ignore, but it is not going away. This red hot issue must be dealt with, and the sooner the better.

An Illegal Act

The very first fact that supervisors must be taught is that sexual harassment is an illegal act punishable by law. According to the Equal Employment Opportunity Commission (EEOC), companies paid out over $50 million in 2002 along to settle cases brought by employees. And with the average payout estimated at around $750,000, this has become a road to wealth for workers across the country. The cases I'm personally privy to are shocking. Supervisors gone wild in workplaces throughout the country, often costing irreparable harm to the company's reputation and image in the community. One thing most supervisors fail to realize is (besides being held personally liable from a monetary point of view) they can also be brought up on criminal charges as well.

The Numbers Are Staggering

It is estimated that some 15,000 charges of sexual harassment are filed with the EEOC each and every year. And that $50 million awards figure noted above does not include employees who decide to litigate instead of settle their cases. And get this more than 90 per cent of victims never file a formal complaint or file a lawsuit. If companies are paying out over $50 million (not including litigation), and 90 per cent of employees never bring the charge up, then we have a very serious problem. This really is a 90lb gorilla in the room. Companies that choose to ignore this problem, do so to their own peril.

The New Frontier

With the world of work changing rapidly, there is an upsetting trend happening in today's workplaces. Same sex harassment is exploding in record numbers. Supervisors must be trained to spot, address, and effectively deal with this increasing problem. Some 21% of all cases filed with the EEOC yearly are same sex harassment.

Get This Training Done ASAP

Your company must immediately go on record and get clarity with workers and supervisors as to what is strictly prohibited conduct in the workplace. Explicate everything from back rubs to invading a workers space, to risqué jokes to downloading porn on the company's computers. Companies today cannot afford to leave any stone unturned. Supervisors should know the legal ramifications of their actions and have the chance to ask questions of your policy.

The company is not a baby sitter, nor should it become the relationship police. However everyone including supervisors should understand the legal backlash that may result from their careless actions. In simple terms, supervisors should just say no to office romances because workplace fraternization today is an open invitation to give away everything they have worked for in their life, including their reputation. Companies need to conduct sexual harassment training every year at the very least, in order to keep it fresh on the mind of every employee. The strategy being to correct the harassment before it becomes a major problem.

Summary

Sexual harassment is an illegal act punishable by law, and is yet another reason companies must immediately conduct supervisor training for staff. Companies today cannot ignore this 900lb gorilla sitting in the room. Therefore, they must be proactive in providing clarity on this red hot issue.

Dr. Cubie Davis King, Ph.D is a Training & Performance Improvement Technologist, with a resume which includes 9 years military service, and executive positions with Xerox & CitiGroup, Dr. King has won top performance awards at every level in his storied career. He heads FIT (The Foundation for Improving Talent & Performance). His latest work is the SuperVisors Core Training 1.0 System .Dr. King is an adjunct professor at National University in San Diego, CA. To reach him go directly to Dr. King's website http://www.goldcrowninc.com

Most employers these days are being faced with the need to make some changes to the way in which their businesses are structured. During these difficult economic times, I am sure that each choice is weighed carefully. As of April 2009, the unemployment rate in Texas stood at 6.7%, which is better than the 9.4% rate of unemployment that the country as a whole is experiencing. This relative good fortune is of little comfort to those whose lives are affected. When you hold the livelihood of others in your hands, there is a great sense of responsibility.

You need to make the decisions that are best for your business and family as well as give consideration to the people who work for you. Unfortunately, after issuing a painful but necessary cut to your staff, you still may be accused of discrimination or wrongful termination. Good jobs are hard to come by these days, and employees may try any tactic to keep their positions. You need to be familiar with both federal and state laws that apply to employment practices, as well as know that steps you can take if faced with such a lawsuit.

Let me start with a piece of good news. Texas is one of the friendliest states in terms of employer protection. Our state follows the "employment at will" rule, which means that, with limited exceptions, an employee can be fired without warning and without cause. Even if there is a written contract establishing employment, the employer must specifically indicate that he or she will not terminate anyone except for under certain circumstances, which must be laid out. So, even if you signed on the dotted line when hiring someone to assist you in your office, you likely have retained the right to let that person go at any moment that you choose.

The "at will" policy does reach its boundaries when it comes into conflict with the federal and state laws that are in place to protect employees. Texas employers cannot discriminate against or fire employees who fit into the following categories:

1. Whistle blowers - If any employee reports fraudulent activity or safety or environmental concerns to authorities, this person cannot be fired as a result.

2. Refusing to Break the Law - This should not be surprising. If you ask an employee to commit an illegal act and your request is refused, you may not use this decision as cause for termination.

3. Victim of Discrimination against Protected Class - An employee cannot be fired simply based on race, color, national origin, religion, sex, age (with exceptions), disability, or for taking maternity or family medical leave

If you are dealing with a former employee who is suing you for discrimination or wrongful termination and his reasoning does not fit into one of the categories listed above, the case should be dismissed quickly. This is certainly the desired outcome, as the cost for further legal defense can be quite difficult for employers to handle. Out of the discrimination claims that are not dismissed outright, eighty-one percent wind up in front of arbitrators of in administrative hearings. These proceedings cost the employer an average of between $22,000 and $40,000. Of course, cases that end up going to trial will be exponentially higher in total cost. An employer's best course of action is to know his rights and his boundaries when dealing with employees and always to operate within these guidelines.

Keeping up with this issue is crucial for employers because accusations of discrimination are on the rise, both here in Texas and around the country. Age discrimination is one area that perhaps does not get much publicity, but is a growing problem. As shared by Joe Bontke from the Equal Employment Opportunity Commission (EEOC), "The older the workforce gets, the more age discrimination claims come. 16,585 out of 86,000 cases received in Texas last year were regarding some form of age discrimination."

This represents a 20% increase in claims since 2004. Section 21 of the Texas Labor Code, as well as the federal Age Discrimination in Employment Act of 1967, protects individuals who are at least forty years old from facing employment discrimination based on age. In addition, charges of racial discrimination in the workplace are at their highest levels nationally since 1994. With the diverse population that resides in Texas, this issue is one that needs to be of concern to all employers. And, with layoffs and office closures continuing to occur in the wake of the current recession, you can be certain that disgruntled employees will be looking for legal reasons to protect their jobs or promotions when paychecks are on the line.

What can you expect if an employee does seek legal action against you? A complaint will be filed with the EEOC within 180 days of the alleged wrongdoing. If mediation is available, the EEOC may present this option to both parties as a first step. Mediation is free and the resulting settlements are confidential. If an investigation is determined to be necessary, someone from EEOC will be assigned to the case and embark upon a study of the case that usually takes at least six months.

The EEOC then will send the employee a "right to sue" letter, which indicates that the employee either has a cause for a complaint, no cause for further action, or insufficient evidence to proceed further. Regardless of the decision reached by the EEOC investigator, the employee still has the right to sue you in federal or state court for up to ninety days after receiving the "right to sue" letter. Be prepared for the possibility that an employee who is unhappy with his situation will pursue his or her case to the fullest extent possible.

It is in your best interest to hire an employment attorney as soon as you receive notice that an investigation concerning possible discrimination at your workplace is underway. An experienced lawyer will assist you in the important process of being fully compliant with the request for materials. Your attorney also will be your advocate in presenting the best possible argument in your defense and ensure that all relevant state and federal laws are being applied on your behalf. If you are facing a complaint concerning employment discrimination or wrongful termination, please place a call to an attorney today.

Tony Bertolino is a managing partner of Bertolino LLP, a law firm with offices in Austin, Houston, and San Antonio. Bertolino LLP has attorneys who specialize in the area of business litigation and can assist with issues surrounding employment. Please contact Bertolino LLP to learn how you can be assisted with your legal needs as an employer.

Tuesday, June 23, 2009

We continue our supervisor's core training program with employee write-ups. One of the first lessons companies need to convey to supervisors is a continuous requirement to document all matters pertaining to employees, in a clear and unambiguous style. Here is yet another area where attorneys are having a field day bringing lawsuits against companies.

Never Been Trained

One question I pose to human resources (HR) professionals across the country is, "when is the last time you gave a proper documentation class to supervisors?" More often than not the reply is "never." Since the supervisor is the first line of defense against employee lawsuits, doesn't it make sense to have them trained on the documents absolutely crucial to the company litigation success?

Many times the supervisor hasn't a clue to why certain documents are important, if and when, a charge is made against the company. Here are a few attorneys will go over with a fine tooth comb:

2. Discipline letters: attorneys comb through these letters to see if everything stated is factual, and to see if the supervisors have embellished any material facts.

3. Performance write-up (PW): there are certain words that supervisors are never to use in a PW. Having said this, supervisors' must receive core training to never ever try to interpret employee behavior. Only describe what happened during the particular incident.

Never Interpret Behavior

For example a supervisor may document that during a discipline meeting with the employee, the employee turned over the table, and begin to act crazy. Documented this way, it becomes an interpretation of the incident (an assumption). Why, because you have to be a trained professional to declare someone "crazy." A better approach is to document that the employee became irritable, began to shout loudly in the room, turned the table over, and began to make threats of bodily harm to the supervisor. Then record what those threats entailed. A jury now decides if the actions were "crazy," not the supervisor.

State Only Facts

It is of utmost importance to train your supervisors to stick with only the facts. Never include third party heresy of what another employee thought they heard or saw. If they were not a first hand witness to the facts, don't include this in official documents. The attorney could later spin that employee's words to the company's disadvantage. For example, an employee claims they heard another employee say the person who committed the act was wearing a red shirt. Not good, because they were not an actual witness to the person wearing the red shirt, and witness to the alleged act.

Set Clear and Measurable Goals

Finally, make sure everyone of your supervisors understand what acceptable documentation looks like and how good performance is measured. Don't just tell supervisors their paperwork is rejected; explicate clearly the reasons why and get them into either an initial documentation class, or a refresher course.

Summary

One of the first lessons companies need to convey to supervisors is a continuous requirement to document all matters pertaining to employees, in a clear and unambiguous style. Make sure all your supervisors understand what acceptable documentation looks like

Dr. Cubie Davis King., is an international Performance Technologist with a Ph.D in Training & Performance Improvement,. His resume includes 9 years military service, and executive positions with Xerox & CitiGroup, Dr. King has won top performance awards at every level in his storied career. He is considered a foremost leader in employee performance improvement. Dr. King is an adjunct professor at National University San Diego, CA.His latest work is The Supervisor's Core Training System. To read more and to contact Dr King go directly to his website @ http://www.goldcrowninc.com

A vital part of every organization's supervisors' core training must include a detailed explanation of why employee records are essential to the company. Every single record kept on employees can either make or break a case brought by a worker. Therefore, supervisors must be taught the importance of these records.

A Dangerous Practice

One dangerous practice I see across the country is supervisors being allowed to keep vital employee records in their desk drawers. The problem is made worst when supervisors are not trained to protect these important files, and worst still when the company has no formal written policies designed to protect these files. Now, when an employee files a lawsuit against the company, it becomes a walk in the park for plaintiff's attorney(s) because the records either cannot be found, or vital parts of the files are missing.

First Things First

The very first thing your company needs to do is write policies that will protect your vital records. And all records (pertaining to employees), from hiring documents, to performance reviews, all the way to supervisor termination notes, become vital records in a court of law. Your policy should state clearly that there is only one central location for personnel records in the company, and this should be the human resources department (if at all possible-have only one central location).

The Next Important Statement

The next part of your policy should make very clear to everyone, including supervisors, that none of the company's records are to be taken off the premises without the express written permission of an official of the company. Companies should stress that permission must be granted in writing by, and only by, this designated official. Next, state that your "no taking of records policy" includes the taking of records on portable memory sticks, flash drives, and other portable storage devices. Technology is advancing rapidly, so your company should move with urgency.

Clarify Sanctions

Make clear to everyone exactly what sanctions and penalties will be imposed if, and when, employees and supervisors breach the "records" policy. The taking of company records should be considered a material breach, as such should be dealt with in a manner that explicates to everyone you are serious about guarding and protecting company records.

When a lawsuit ensues against your organization, plaintiff's attorney(s) will make you prove case in a court of law. This task will be extremely difficult with no detailed records. It would be unconscious able to have spent countless hours training supervisors' in your core training classes to record and document to the utmost detail, and then have them either take the records with them when they leave the organization, or throw the records in the trash. This will be an unforgivable breach and your company will pay dearly.

Summary

A vital part of every organization's supervisors' core training must include a detailed explanation of why employee records are so important to the company. Every single record kept on employees can either make or break a case brought against the company by an employee. Therefore, supervisors must be taught the importance of maintaining these records.

There's not just one kind of Power of Attorney, and you need to make sure that you choose the right kind. After all, conferring Power of Attorney means that someone will be able to act on your behalf on health decisions and financial matters, making decisions for you when you're unable. It's important to get the right Power of Attorney, and these tips can help you choose the kind that's best for your individual situation.

1. If you wish to confer Power of Attorney on someone, or are applying to act with Power of Attorney on someone else's behalf, it is important to ensure that you get the right type. There are several to choose from. Nondurable, durable and springing are three types, and all of these can be verbal or oral, witnessed or unwitnessed.

2. Nondurable power of attorney applies immediately upon being granted and is appropriate for a set amount of time or for the duration of a specified matter - such as the sale of a house - after which it ceases to apply. This is suitable when someone needs a level of help with a transaction or operation of some sort but still retains many of their faculties.

3. Durable power of attorney is more appropriate in cases which will continue either in perpetuity or for the foreseeable future. If an individual has suffered serious physical injury or mental degradation to the extent where they are unable to make decisions with confidence and consistency (most usually in cases of senility), they may confer power of attorney to a trusted member of their family or a friend.

4. Springing power of attorney is for many people the most desirable state of affairs as it comes into effect at a specific time - most usually when a doctor certifies you as incapacitated or other circumstances have become effective, thus making it unsuitable or undesirable for you to make your own decisions.

5. If you are the one on whom Power of Attorney is being conferred, it is worth ensuring that you have a witness to the conference - part of the nature of Power of Attorney is that the person who is conferring it may often become confused, irritable or unreasonable, and may switch between lucidity and confusion without notice. They may well accuse you of defrauding them.

6. For similar reasons to the above, it is worth asking yourself before you take on Power of Attorney whether you are certain you can emotionally endure what will result from being empowered in such a way. It will often require making very fundamental and seismic changes in the person's life, and to do this will require great emotional strength, particularly if they are someone to whom you are close.

7. When acting with Power of Attorney, it is possible that you will encounter interference and displeasure from their family - which may also be your family. It is important to have the full confidence of people to whom the individual is close and with whom they retain a strong bond of trust. This will allow transparency in all stages.

8. Inform yourself as much as you can about the concept of power of attorney. Find out specifically where you stand as a result of taking on power of attorney before you enter into an agreement. Although the situation is a strain on everyone, it is you who will be required to conduct financial and organizational details, and it is therefore important that you make sure you are protected and allowed to do so.

Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter.

LegalBuffet.com is a complete online resource that compares the legal services offered by various online companies. Find the best company for your general power of attorney needs at http://legalbuffet.com/power-of-attorney/.

This article is in response to a question recently asked by one of my tax clients, Jim, which was, "How does updating our family trust affect our existing assets?" I'm going to start by establishing some basic disclaimers and ground rules regarding my comments below. I am not an attorney, nor do I want to provide legal advice. I work with a number of great attorneys that practice in this area.

My focus in responding to this question will be from a tax professional's standpoint, based on my practical knowledge gained from working with thousands of clients over many years that have (correctly and incorrectly) handled their estate issues with a living trust.

A LITTLE HISTORY

A living trust is considered to be a separate tax entity, originally created for people who were still living, but could no longer handle their financial affairs. The trust document would identify the participants:

--the Grantor - the person whose affairs needed to be handled

--the Trustee - the person or business that would be handling said affairs, and

--the Beneficiaries - the people or causes that would receive any remaining assets in the event of the Grantor's passing.

In addition, the trust document would describe all the instructions for handling their financial affairs, providing certain powers of administration and restricting certain actions of the appointed Trustee. In order for these financial affairs to be able to be managed by the Trustee, the assets would be "transferred" into the trust's name. In plain English, this meant that all the Grantor's assets were retitled into the name and ownership of the living trust.

Over time, the benefit of creating a living trust while the Grantor was still competent was popularized. The legal industry realized that a Grantor could decide ahead of time how and when and where their assets would be managed and distributed to the next generation while reducing or eliminating estate taxes in the process.

As a result, creating a living trust became all the rage. Some attorneys even created living trust "mills", turning out general living trust documents at very low prices. However, these living trusts were created with inherent implementation issues because there was no follow through provided to the Grantors or Trustees by the trust "mill", often making the trust essentially useless.

FUNDING

During the process of solid estate and trust planning, the Grantor's assets are analyzed and reviewed in detail for their proper positioning in the trust document's instructions. Often, an actual assets listing is created to identify which assets should be retitled into the name and ownership of the trust.

However, until the Grantor actually moves the assets into the trust's name and ownership through retitling, the trust is considered to be unfunded. An unfunded Trust does not have any assets to manage or distribute. An unfunded trust does not provide any benefits to the Grantors or the Beneficiaries. An unfunded trust is a useless entity. Retitling the identified assets in the name of the trust as soon as the living trust documents are valid is a critical implementation point that many families miss.

SELECTING A TRUSTEE

Many living trusts were set up to appoint a well-known bank or trust services as a Trustee, implementing the instructions of the trust document. It was thought that selecting an impartial, objective trustee would provide the trust with better management decisions. Instead, the Trustees were often placed in the position of having to make judgment calls without the value of knowing and understanding the unique situations of the people involved. The impersonal nature of these decisions often had a negative effect on the family and beneficiaries, instead of the supportive and loving intentions the Grantors wanted when the living trust was created.

Since a trustee can hire competent financial management services, it is more important to appoint as trustee, a trusted family member or long-time family friend that knows and cares about the family and beneficiaries related to the trust.

TRUST UPDATES

Now to address Jim's initial question. Whenever the tax laws change or there are changes in the family situation, the living trust document should be reviewed by informed legal and tax counsel. Many of the trust "mill" documents of years-past have never been revisited for necessary updating, leaving the living trust's original instructions inadequate. There are two ways that trusts are updated.

1. The simplest update to amend the trust, which provides new instructions and directives with respect to the trust's management. To be valid, an amendment should be properly recorded and any required new actions implemented. Trust amendments do not usually result in the retitling of trust assets. Since each family situation is different, it is important to receive clear implementation instructions from your legal counsel regarding your amendment and work with any financial professionals for any changes required in your assets.

2. Sometimes, a completely new trust is created. In that case, certain assets are identified to "fund" the new trust. Just as in the original trust situation, it is necessary to retitle the selected assets into the name and ownership of the new trust. In this setting, every situation is very different, and the decisions are custom-tailored to the individual family's situation.

Today, most people establish a trust to reduce or eliminate their estate tax liability. Thanks to Congress, this area of the tax law is currently undergoing constant revision and upheaval. It is vital that every family with a living trust stay abreast of the tax and regulatory changes that take place. Having a strong working relationship with your attorney and tax professional can help you make sure that your living trust is going to accomplish your directives.

Remember, any time changes need to be made to your trust document, it is important to involve your tax professional BEFORE the changes are executed. Not all attorneys understand the tax ramifications of your decisions, which incorrectly implemented, can actually increase taxes to you and your estate instead of reducing them.

Copyright (c) 2009 Nick Hodges

Nick Hodges, President of NCH Wealth Advisors, provides US expatriates with the best tools, strategies and planning techniques to help expats manage their tax and financial goals and dreams on a day-to-day basis regardless of their location. To claim your free gift, ExPat Life Portfolio Kit, visit his site at ExPatCFO.com

Monday, June 22, 2009

Section 230 of the Communications Decency Act of 1996 (CDA) provides immunity for interactive computer service providers that merely publish information provided by another information content provider. Put another way, as long as the computer service provider is not deemed to be the information content provider (i.e. the one responsible for the user-generated content), the immunity under the CDA applies. However, CDA specifically holds that a computer service provider may be liable and not immune if that which is provided by the web host or other ISP makes it "responsible, in whole or in part, for the creation or development of" the offending conduct.

Therefore, the question becomes whether the actions are sufficient enough to transform the service provider into a content provider. Most generally believe that one who simply allows for posting of user-generated content qualifies for immunity under the CDA. However, as shown above by the CDA's limitation on immunity, participation in the creation or development of that user-generated content may subject the computer service provider to liability. The question, therefore, is: What is the role of the website operator?

The questions a website operator asks users, the information provided in drop-down boxes to users completing a profile, the searches and algorithms run by the website operator utilizing such data, and related considerations are all important when analyzing whether or not the CDA's immunity applies. New court decisions are being issued on Section 230 regularly, and it is imperative that website operators understand the scope of their liability as it relates to their use of user-generated content. Generally speaking, the more neutral the website, the more likely the website operator will be deemed a service provider rather than a content provider. However, questions still remain as to what particular requirements or other activity may cause the CDA's immunity to not apply.

Computer crimes refer to the use of information technology for illegal purposes or for unauthorized access of a computer system where the intent is to damage, delete or alter the data present in the computer. Even identity thefts, misusing devices or electronic frauds are considered to be computer crimes.

Here is a list of different types of computer crimes.

• Hacking: This involves gaining unauthorized access into a computer system. Usually hackers are able to get through the security capabilities of a computer system and once they are in, they have unlimited access to confidential information and data stored in the computer. Today, hacking of IP addresses is very common as it allows the hacker to assume a false online identity and conduct criminal transactions without revealing his true identity.

• Phishing: This is a common computer crime is the United States. Here emails are sent to gullible users that make them believe that the emails are from authentic sites. The users are passed onto fake websites where they enter their confidential data like usernames, passwords and credit card details. The fake websites look and feel real and that is why many people get fooled into entering sensitive information.

• Computer Viruses: These are actually computer programs that are capable of replicating themselves and harming computer systems present in a network. These viruses work without the knowledge of the users and spread from one computer to another through the network, Internet or removable devices like CDs and USB drives. Writing computer virus is a criminal activity and is punishable by law.

• Identity Theft: This one of the most serious frauds in today's word. It involves stealing money and getting benefits by using an identity of another person. This also includes the use of someone else's credit card details to purchase good and services. It has been seen that blackmail and terrorism often employ identity theft.

• Cyberstalking: This is using the Internet to stalk a person just like someone world do in the real world. Here the stalker sends emails, spreads false information or issues threats using the Internet. Cyberstalking is also used to prey on unsuspecting children and women.

About Author:Pauline Go is an online leading expert in the legal industry. She also offers top quality articles like : Criminal Law.

Saturday, June 20, 2009

Compton in Los Angeles County, California is one of the most dangerous suburban areas in the U.S. In the last few years, a drop in housing prices has attracted many middle-class residents to the city and crime has gone down. Unfortunately, many Compton car accident attorneys will confirm that car crashes are still a problem due to motorists who run red lights and those who get behind wheel after they've consumed too much alcohol.

Cumulative car accident statistics as far back as 2001 to 2003 reveal that Compton experienced a total of 26 fatal car collisions, according to the National Highway Traffic Safety Administration. This averages out to 2.8 fatal Compton car crashes per 10,000 people, which, although below the national average, leaves much room for improvement.

Moving ahead a few years, statistics compiled by the California Highway Patrol's Statewide Integrated Traffic Records System (SWITRS) showed that in 2006, nine people lost their lives and 359 people were injured in Compton car crashes. Three pedestrians were killed and 27 were personally injured in motor vehicle mishaps. And bicycle accidents injured 18. In addition, motorcycle accidents killed one and injured 20 people. Those who insisted on drinking and driving caused four deaths and 38 injuries. During the following year, eight car accidents resulted in as many fatalities.

Many Compton car collision lawyers have noted that red-light cameras can be effective in reducing car accidents, since they convince those who might try to outrun a red light to think twice. These cameras often have motion video and still photo capabilities, leaving suspects very little "wiggle room" to avoid paying what many consider a hefty fine.

The success of red-light cameras in other cities throughout the U.S. convinced the city of Compton to introduce its own Red-Light Photo Enforcement program. To reduce the number of car accidents and injuries, the city installed red-light cameras at critical crash-prone intersections. Camera locations include Alondra and Willowbrook, Compton Blvd. and Willmington Avenue, and Long Beach Blvd. and Rosecrans Avenue.

To further reduce the number of Compton car collisions on its streets, Compton enlisted another powerful crash prevention tool--the sobriety checkpoint. These were conducted during the Winter Holiday Mobilization Period of December 14, 2007 through January 3, 2008; the Labor Day Mobilization Period of August 17, 2008 through September 3, 2008; and one additional checkpoint conducted before September 4, 2008.

The city also implemented Los Angeles County's Avoid the 100 DUI Campaign in 2008, conducting DUI checkpoints on December 19, 20 and 23. In addition, the Los Angeles County Sheriff's Department, Compton Station, carried out a number of checkpoint operations throughout the city, implementing DUI Saturation Patrols in July 2008. Officers stopped cars to remove any DUI suspects and also checked for valid driver's licenses and registrations.

Since their founding in 1978, Bisnar Chase lawyers have represented over four thousand people in car, motorcycle, truck, pedestrian and other personal injury cases. The law firm has an "AV" rating, the highest level of professional excellence, by Martindale-Hubble. John Bisnar, who is the author of this article, and his partner Brian Chase each have a "10" Avvo rating, the highest possible. John was named a "Community Hero" by the United Way, while Brian was named a "Trial Lawyer of the Year" in 2004 and one of the 2007 Top 100 Trial Lawyers. More important than all their top ratings and awards are the testimonials their clients bestow on them. Aren't these the type of guys you want representing you? For more information on Compton car accident lawyers, visit the Bisnar Chase web site http://www.bestattorney.com or call 1-800-561-4887.

Have you come to the point in your relationship with an online date where you want to check him/her out? Here is a step-by-step guide written by a professional background checker.

1. Their financial status including credit, job and assets.2. Their marital status including wives, family, alimony and child support.3. Their criminal history or lack thereof.

Here is a step-by-step guide to checking out those three most important things that most people want to know about an online date. (Note: The remainder of this article will be written from the perspective of a woman checking out a man because that is by far the most common check.)

Fact #1. Ordering a credit report on someone, even with their written permission, is not a permissible purpose. Therefore the credit bureaus will not issue the report to you. If you should be able to find someone who will run a credit report for you illegally, that person can receive a substantial fine per incident. (A more immediate result would be the revocation of credit report services by the credit reporting bureau.) The simple way around this is to have the person obtain his own credit report and give you a copy or let you see the original.

Verifying a job is easy. First you need to get the "facts" from your boyfriend. Remember that you are verifying the information not getting new information from the employer. They will verify the info you have, but will not give out new info. Those facts should include his job title and dates of employment as a minimum. While few larger companies give out salary info you can still get a wealth of other info. Look for a help wanted for the same profession in the same locale to get an idea of the salary range. When doing this we always ask an open ended question at the end, after we've received all of the basic information. The question would be something like this, "What can you tell us about his competency, character or job performance?" With a question like that you might get a response like the following: "There are no disciplinary actions in his file, but doing his payroll is a pain because his pay is garnisheed because of alimony and child support payments." It is an urban myth that you (or an employer) can't ask certain questions of a previous employer. Nonsense; you can ask whatever you want. The previous employer doesn't have to answer, but there's no harm asking.

To check his assets you would probably start with his home. Many, if not most counties have online searchable property tax assessment records. With the address you can easily get an approximation of the property's value. It may be mortgaged to the hilt, but that info is much more difficult to obtain. If the information is not available online it will require a trip to the county Assessor's Office to get the pertinent data. Remember, you need the address to look up the records. You can also check with local realtors to see what houses are worth in his neighborhood.

Fact #2. Checking marital status is very difficult outside of their home county. Here's why. Most people get married in the city and county where they live. Logic would tell us that that makes sense. And, for purposes of checking, that is easy to check. Conversely, most people get divorced where they live too.

The problem is that one county does not have a record of what happens in another county. For example: Let's say a couple gets married in New York City. That marriage is recorded in New York County. If they subsequently move to Oshkosh, Wisconsin and later get divorced there, Winnebago County Wisconsin does not notify New York County of the divorce. As far as New York County is concerned, they are still married. Now, let's suppose that the man goes to Las Vegas and gets married again. Clark County, Nevada doesn't check to see if he is already married in Wisconsin or New York or anywhere else before the marriage license is issued. Now if you were checking for his marriage records, where do you check?

Now here's where it really gets fun. What's to stop them from getting divorced in Reno or worse yet, in Mexico? It turns out that Guam has a cottage industry of providing quickie divorces. Because Guam is a US Territory, divorces must be recognized in all US states. Should you check Guam too? What about checking out a woman's marriage/divorce records; which current or maiden name do you look up? This is why those marriage checks online are basically worthless. They only check where the person currently lives.

For child support and alimony you would have to search civil records in the jurisdiction where the divorce occurred.

Fact #3. Criminal records can be searched by anyone anytime. You don't even have to be a citizen to request public criminal records. Again, the trick is knowing where to search. Most people think that those online database companies check everything everywhere. You know, the ones that say Instant or Free criminal checks. Not so. They only get records where they can get them for free and most of the time that is from a state's Department of Corrections, the state prison system. This means that in these states you are only getting felony convictions where they were sentenced to prison. A person could have a long history of misdemeanor crimes or an acquittal of a felony and you would get no record of it. In about half of the country records must still be searched in person at the county Superior or District Courthouse. Wherever this is the case, you get no records at all when using those instant search companies.

Do it yourself. If your online lover is local, go to your local Superior or District court and go to the criminal court clerk's office and tell the clerk that you would like to do a criminal records search on a person. You will need to have his full name and date of birth. Ask the clerk if the courts are consolidated in your county. Consolidated courts have records of all the other courts in that county so you only have to search in one place. If he is not local, you may want to use the services of a professional background checker to check each location (jurisdiction) where he has lived.

Here's another problem. People tell me all the time that their county court offers online searches that they can search for free and the person they are checking lives in that county. Sounds great! And yes, it is true that there are many places in the country where this is possible, the problem is, how long has he lived in that county and where was he from before that? For all you know, he has only lived there a few weeks and before that he lived in another state where he was just released from prison.

And another: Criminal Checks do not include civil court checks. If a person has a restraining order against him from his ex wife or girlfriend, that is recorded in civil court, not criminal court. A criminal search does not reveal such records.

A professional reference checker's trick. If you are able to get references from him you're going to love this. My company has been doing background checks since July 1994. Over these years we've learned many, many tricks to getting info from a variety of sources. Years ago while doing FAA and NRC background checks we were contracted to conduct reference checks on job applicants. Under the federal requirements we were required to do what I call a Reference Double Check. Here's how it works: On the job application the applicant was asked to list three personal references. We contact each of those three references by phone and ask them if they know someone who knows the "applicant" as well as they do. Or goal is to get three references that are not listed on the application and get a "real" reference from each of them.

My company has done thousands and thousands of reference checks, but these were different and we have used this technique many times. Since no one has ever listed a personal reference that will not say wonderful things about them, this is a great way to get to someone who might actually say something revealing about the applicant. Using this method we would often get ex wives, disgruntled employees or employers, angry neighbors, in-laws, etc.Remember that it is perfectly legal to get all of the above info (except credit) and more on anyone anytime you feel like it. Where the laws come into play is how you use the info. If you are using the info for private personal reasons like a relationship you are free to do so.Kit Fremin is the owner and founder of Background Check International. Since 1994 BCI has served clients as varied as: the LA Times, Department of Defense, Mars, Inc., the UN, the NTSB and Calvary Chapels nationwide. His website is: http://www.bcint.com and he can be e-mailed at kit@bcint.com.

Thursday, June 18, 2009

Most small and many medium-sized businesses make common mistakes that could be easily avoided with little cost and just a small amount of effort. However, businesses make the same mistakes over and over. This article, which is based on Georgia law, will identify nine common legal mistakes and the steps businesses can take to avoid them. Although this article will help you identify and understand some key points, be sure to consult with a lawyer from your jurisdiction regarding the law in your jurisdiction, and also about the particular factual circumstances that affect your business. This article is based on a presentation the author recently gave to a business.

Mistake No. 1: Failure to follow the prime directive. What is the prime directive? It is a nearly universal rule regarding legal issues and can be stated as follows: It is almost always cheaper to address a legal issue on the front end (such as by preparing a proper contract) than to address it on the back end (such as through litigation). Many business people know that they should pay more attention to legal issues, but they instead choose to ignore the issues, or try to get by with home made solutions. In litigating cases for over twenty-five years, I cannot even hazard a guess as to how many times litigation could have been avoided if an issue had just been addressed before there was a dispute. If you take away anything from this article, remember the prime directive.

Mistake No. 2: Failing to Protect Limited Liability. Most business people know that they should form a corporation or a limited liability company ("LLC") for their business, and know that doing so offers protection for their personal assets. It is true that the "corporate veil" will protect personal assets from many types of liability (do not forget, however, to also have a good liability insurance program). However, many business people are not aware that, in certain circumstances, courts will "pierce the corporate veil," meaning they will look through the corporate liability shell and subject shareholders and others to personal liability. This arises when a court determines that the corporation or LLC has been used for "fraud."However, from a business person's standpoint, a better explanation is that the veil may be pierced when the business is not properly maintained as a separate legal entity.

Courts look for particular indicia in considering whether to pierce the corporate veil, including (1) using the corporation to pay personal debts and obligations, (2) not maintaining separate personal and company bank accounts, (3) not maintaining proper corporate records, such as annual shareholder meeting minutes or unanimous consent resolutions (this happens all the time), (4) not documenting shareholder loans to the company, (5) not maintaining proper accounting records, (6) signing company documents (letters, etc.) in a personal, rather than a business capacity (i.e., not signing as an officer of a corporation), and (7) not using the full corporate name in doing business (i.e., not using "Inc." or "LLC" on letterhead, business cards, purchase orders, and business forms). I am not suggesting that failing to do any one of these things will result in piercing the corporate veil. In fact, piercing the corporate veil is somewhat difficult. However, the point is that there is no need to incur that risk. Proper observance of these formalities may also be important to potential investors or potential merger and acquisition partners.

Mistake No. 3: Not Understanding the Consequences of Sales Talk. Most business people understand a warranty to be a written undertaking, either in a contract or provided with a product, that says what the manufacturer or seller will do if there is a problem with a product. It is true that such documents are warranties. However, the law goes further. Statements your sales people make in the sales process may also create warranties.

Lawyers love sales people because sales people have helped put a lot of lawyers' children through college! Here is how the problem can arise: Sales people are typically trained to think of themselves as consultants. Sales people may make recommendations, they may make very specific statements regarding the capabilities of the product, and may even prepare customized "pay back" reports or other written reports regarding the benefits of the product for the customer. Although this approach is undoubtedly effective in creating sales, it can result in unintended express warranties.

Under the Uniform Commercial Code ("UCC"), any affirmation of fact regarding the goods that becomes part of the basis for the bargain can create an express warranty. Descriptions and samples of the product that become part of the basis for the bargain can also create express warranties. There is probably no way to avoid this risk completely. However, there are some common sense steps that can be taken to lower the risk without lowering sales. First, if a sales person is creating a payback analysis or similar document, any statements regarding performance should be described as an "estimate" or "illustrative," and that actual experience may vary. Of course, it is also very important to have data and experience backing up any estimates! Second, every effort should be make to have the customer sign off on a written contract or terms and conditions that state that the only warranty is the written warranty stated in the contract or the terms, and that the contract or terms supersede all prior discussions, negotiations, and agreements. It is best to have an experienced lawyer both review your sales techniques and prepare a standard contract or terms and conditions.

Mistake No. 4: Not Disclaiming Implied Warranties. The UCC provides for implied warranties that apply to any sale by a merchant. The implied warranty of merchantability provides, in essence, that goods will be of fair and average quality and would pass without objection in the trade. The implied warranty of fitness for a particular purpose comes into play when a seller has reason to know that a buyer is acquiring goods for a particular purpose, and is relying on the seller's expertise to furnish suitable goods. If these circumstances come into play (which they often can, given the tendency of sales people to act as consultants), then there is an implied warranty that the goods are suitable for the purpose.

Implied warranties can create a lot of problems for sellers. Implied warranties come into play only when there is a dispute. Further, implied warranties are very vaguely described in the UCC. This means, as a practical matter, that what an implied warranty "really" means will be revealed only by the plaintiff's lawyer after there is a dispute. Based on many years of experience, there are few creatures more creative than a plaintiff's lawyer!

Fortunately, however, the UCC also generally allows implied warranties to be disclaimed. This can be easily done, but there are some "magic words" that need to be used. It is best to have a proper disclaimer in your written contract or terms and conditions. It is again a good idea for counsel to prepare or review the contract or the terms and conditions. Please note that there are additional issues if you are selling consumer goods, so be sure your lawyer addresses those issues as well.

Mistake No. 5: Not Protecting Trade Secrets and Confidential Information. Many business people think of "intellectual property" as patents, copyrights, and trademarks. It is true that patents, copyrights and trademarks are important forms of intellectual property. However, particularly for small and medium-sized businesses, the most important forms of intellectual property are often trade secrets and confidential information. However, many small businesses also do not take adequate steps to protect them.

What is a trade secret? Under Georgia law, many types of information may qualify as a trade secret, including business plans, secret formulas, computer programs, customer lists, and other information. The Georgia Trade Secrets Act lists many types of information that may quality, and the list is not intended to be exhaustive. Generally, information must meet three elements to qualify as a trade secret: (1) it must not be generally known (i.e., it must be a secret), (2) it must derive actual or potential economic value from not being known, and (3) it must be subject to reasonable efforts to maintain its secrecy.

Other confidential information may not quite rise to the level of a trade secret, but may be information that a business wants to keep from competitors. The line between a trade secret and other confidential information is a gray one, but both trade secrets and other confidential information should be protected. Unfortunately, many businesses do not protect trade secrets and confidential information adequately.

What steps should be taken? First, employees, consultants, actual and potential suppliers, actual and potential customers, and perhaps others having access to trade secrets or confidential information should be subject to non-disclosure agreements ("NDAs"). NDAs are also known as confidentiality agreements. It is very important that NDAs be crafted for particular circumstances, because "one size does not not fit all." In addition, it is important to put other safeguards in place, such as limiting the disclosure of trade secrets and confidential information to those who truly need to have access, maintaining hard copy documents under lock and key, and using password protection for electronically stored information. There are many other steps that might be taken. Trade secrets, confidential information and NDAs are very important subjects.

More information is available on a three-part podcast series that can be accessed on our law firm's website. However, in putting a program in place, and especially in drafting NDAs, it is very important to involve counsel, because there are many issues that are not readily apparent to an untrained person.

This concludes Part I of this article. In Part II, we will cover additional issues.

John L. Watkins is a business litigator and business lawyer for Chorey, Taylor & Feil, A Professional Corporation, a business litigation and business law firm in Atlanta. John represents businesses of all sizes, and has written and spoken frequently on helping domestic and international business people understand and navigate the legal system. After practicing with a large law firm for over twenty years. John joined Chorey, Taylor & Feil in 2007 because of its high quality, smaller size (20 lawyers), and ability to provide more responsive and higher touch service to its clients. John practices primarily in the field of business litigation, handling cases involving trade secrets, insurance coverage, shareholder and corporate disputes, commercial contracts, construction disputes, product liability, and other commercial matters. John also negotiates, drafts and reviews sales contracts, non-disclosure agreements and other contracts. John is active in the international business and legal community, and represents a number of international companies or their U.S. subsidiaries. He is also a registered mediator. John graduated first in his class from the University of Georgia Law School in 1982. John is rated AV by the Martindale-Hubbell Law Directory, its highest rating, and is rated 10.0 by the AVVO website, its highest rating. John was named in 2008 and 2009 to the list of Georgia Super Lawyers in the field of business litigation published by Atlanta Magazine and the Journal of Law and Politics. More information can be found at the firm's website, http://www.ctflegal.com.

Below are five common myths about incorporating a website. I base this list on feedback I have received from feedback from hundreds of thousands of visitor to my website about forming limited liability companies.

1. You have to form a separate limited liability company (LLC) or corporation for each domain name.

This is entirely untrue. You absolutely do not have to form separate entities for each and every domain name your business operates under.

A business entity serves two purposes. One is to limit, or contain, all liability within the entity and prevent liability from "spilling" out to affect your personal assets or the assets of other businesses you own. The second is to create separate accounting.

2. A corporation or LLC can't own a domain name.

Of course a corporation or LLC can own a domain name. In fact, it's probably a good idea to have your corporation or LLC own your domain names, as it protects you from personal liability in case the domain name is misused.

For example, you might innocently register a domain name that infringes on a company's trademark. If the company is particularly nasty, it might accuse you of cyber-squatting and sue you. By having the domain registered in the name of an LLC or corporation, the only assets this vindictive plaintiff could go after would be the LLC's or corporation's, and not your personal house, car, bank account, etc.

3. I have to form my corporation/LLC in the same state in which my website is hosted.

Not at all. Your LLC should be formed in the state in which you do business. For a home-based internet business, that means forming your company in your home state.

The location of your website's server is basically irrelevant.

4. If I ship goods as part of my internet business, I have to form a corporation/LLC or register to do business in every state where I ship product.

No no no. You only have to register as a foreign corporation/LLC (by "foreign", they mean formed in another state, not corporations from outside the US) in states where you transact business. Transaction of business is a technical, legal term, and it does not include mere advertisement or shipping of goods into the state.

5. I won't be able to sell my domain name or business if it is owned by a corporation or LLC.

Many people purchase domain names and start internet businesses with the intent to sell them at a profit on website marketplaces like Sitepoint.com or Digitalpoint.

I have been asked before if it's true that a corporation (or LLC) that owns a domain can't sell that domain. That's absolutely not so.

A corporation or LLC can sell any asset, just like an individual can. A domain name is an asset. So is the content contained on that domain, along with customer lists, software, etc. Any and all of those assets can be sold by an LLC or corporation.

I hope this list has been helpful.

Simon Maher is a contributor for LLC Made Easy.To find out more about forming your own limited liability company or how to incorporate your website without a trip to the lawyer's office, visit http://www.LLC-Made-Easy.com

Wednesday, June 17, 2009

Just like in any other business, when you are starting a cleaning business you have to decide on what kind of legal structure you will have. The legal structure of your business is very important because it affects the amount of taxes you will pay and the legal responsibility you have. Aside from that, the requirements for papers and additional paperwork can be determined through the kind of legal program you will have. It can also be an issue when it comes to the amount of money you are making and the amount you can borrow for your business.

There are different types of legal programs which you can choose from:

The first type is the Individual Proprietor. It is one of the easiest kinds of legal programs which make it very common for small scale business. In this kind, the owner has the control over his industry. He is the only one that is responsible for the business. This may be good because you can have the control and you can decide for your business. The drawback in this kind of legal program is that since you are the sole owner, any problems regarding the company such as finance problems you will only be the sole liable. If anything happens wrong, it is your liability and responsibility. Aside from that, the total FICA taxes that should be paid is accountable to you. In other cases, the owner can just match with how much the workers are paying but if you are the only owner then you have no choice but to pay the whole 15%.

The second kind is the Partnership. In this type of company, there are two or more owners of the company. The owners share the responsibilities as well as the income of the company. All profits must be approved by each individual. It is then reported to agree with their tax returns. Just like in the individual proprietor, the owners are also the ones responsible for any monetary obligation of the company.

The last kind is the C Corporation. This kind of business is usually large and is open to other businessmen. The income tax that C Corporations pay is doubled whenever they pay out dividends. There are many requirements in this kind of company. It is necessary for the corporation to file a return as well as pay tolls for their income before the dividends are distributed to its shareholders. Once the shareholders receive their dividends, they must maintain it as their profit which will be taxed again.

When it comes to the legal liability of your company, sole ownership or partnership type of companies are the once responsible for any kind of problem. This means that if the company is sued, the individual assets and income of the owner can be taken.

In terms of the tax that will be paid, sole ownerships and partnerships have less tax compared to C Corporations which are double taxed. In C Corporations, aside from the industry profit, the individual profits of the shareholders are also taxed. In general sole proprietor is the easiest kind of company as it requires less but if you are after a large scale business, C Corporations are best suited for you.